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24 May 1804
Evidence
Forthcomingness
Ch. Monitoires
§.2. Utility
If danger were apprehended, but the mode of stating the nature of the evidence sought should, in the manner of a leading question, + be too instructive, and the statement made for that purpose might previously to its being handed over to the Ecclesiastical Minister, be submitted to the inspection and allowance of the lay Judge. But, in the form /instance/ of common advertisements, as well in the format of posted bills as in newspapers, statements for this purpose are made public in every day's practice, without any such check either of this sort or any other. Why then not trust to advertisements /each [...?] to trust these free channels of communication/ as at present? - For this reason: because even in England, not to speak of less populous and less opulent[?]= countries it is only in considerable towns that such channels are sufficiently /easily enough/ accessible for the purpose: and because in the cases in question, /this way//[...?]/ the force of the religious sanction is not employed to call the attention of men to the subject, and dispose them to render to justice the service demanded at their hands.
What makes /A circumstance that in England renders/ the want of this aid of the religious sanction on this occasion the less sensible, is the assistance which in a preeminent degree seems to be afforded to the like purposes by the force of the popular or moral sanction, the instrument /sound affection/ called public spirit - sympathy with the public - sympathetic concern /regard/ for the public interest - included. In the case of a murder for instance that which in so many parts of Italy is no mans business, is in England every mans business. But this salutary affection would scarcely found to be coextensive with the demand for it on the score of justice. In causes non-penal it would be apt to be too faint for any active purpose, how great soever might be their importance: and in certain cases of a penal nature, smuggling for instance, so far from being to be depended upon for any efficient aid to justice, it is but too apt to act on the other side.
+ In B. [Examination]
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Title: [23 May 1804 Evidence Forthcomingness]Description: 23 May 1804 Evidence Forthcomingness Ch. Monitoires §.1. Compulsory Ch. Of Monitoires. §.1. Monitories, how far compulsory. The sort of advertisement or general address, stiled in French procedure Monitoire, may be considered either as a simple invitation, or as a compulsory application an application of the compulsory cast. It is a simple invitation, inasmuch as it does not employ the force of the political sanction to secure compliance: it is /may be considered/ an application of the compulsory kind, in so far as it aims at employing and succeeds in applying /employing/ the force of the religious sanction to that same purpose. The service commanded by it, on behalf of public justice, is that of yielding such evidence as each individual may be capable of yielding in relation to a fact or supposed fact stated in the instrument. (a) The instrument by which in case of supposed non compliance it seeks to apply the force of the religious sanction in the event of a supposed disobedience to the requisition of service as above described, is a sentence of excommunication. In so far as on this or that occasion such sentence may appear capable of being productive /producing/ to the prejudice of such delinquent any effects of the nature of those which are produced by the force of the political sanction - in other words, by legal punishment, the requisition conveyed by it must be /will be to be/ considered as being of the nature not of a simple invitation, but of a compulsive process. But as the sort of delinquency in question is of that /a/ sort the proof of which will in general be extremely difficult to establish, not to speak of the want of sufficient inducement to attempt the establishing of it to the satisfaction of an earthly tribunal, the probability of compliance may be considered as resting in general upon the force with which the power of the religious sanction is brought to act upon the mind of the /each/ individual, who considers himself as addressed by it; over and above the force of those latent inducements, which will naturally be brought into action by an address made on any such occasion from the judicial power in the state although conveyed in the form of simple invitation, unarmed /unsupported/ either by factitious reward or punishment. (a) Note in next page
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Title: [23 May 1804 Evidence Forthcomingness]Description: 23 May 1804 Evidence Forthcomingness Ch. Monitoires §.2. Utility §.2. Utility of the institution. As to the efficacy of it In the character of a compulsory application; acting by force of the religious sanction, the efficacy of it will in the instance of each individual, depend upon the idiosyncratical texture of his conscience: upon the quantity of that force which in his conception has been brought to bear upon his mind, and upon the degree of his sensibility to that force. But howsoever this sort of instrument of judicature may be circumstanced in point /respect/ of efficacy, nothing can be purer than the sort of motive it sets to work, nothing can stand clearer[?] of every seductive influence. Is it in the nature of the case that a man should entertain the /any such/ expectation of any pleasure or profit in the way /shape/ of reward in the case of mendacity? Is it in the nature of the case that in the same even supposing his mind occupied by any persuasion of a religious nature he should not be apprehensive of punishment, viz: of divine punishment either in this world or another? That cases are not wanting in which the effects of any /of a/ requisition of this nature would be of a mischievous kind adverse to truth and justice, and that accordingly in these cases it ought not to be supposed to be employed, seems not to be denied. Witness all cases turning on the supposed interposition of supernatural powers; witchcraft, apparition of unembodied spirits, every thing that comes under the denomination of a miracle. Why? - because in these cases the danger is less[?], without any consciousness of falshood, that any thing [...?] in the state of and condition of the will, the understanding may be disturbed by the workings of the imagination and false and mischievous conceptions and depositions generated[?]. That there is another set of cases in which if employed at all it ought not to be employed but with particular precaution /caution/, adapted to the state of religious opinions in the country in which the employment of it is proposed /may come to be/, seems equally obvious /dispute/ /[...?]/. Witness all causes /litigations/ penal or non-penal produced or fomented[?] by religious antipathies. For In these cases a general instruction would be proper from the legislator to the judge, viz: the ordinary judge, recommending it to him as a case of this nature, as he tenders his judicial reputation, for the distinctions can hardly be precise enough to constitute a ground for legal punishment not to open[?] a requisition of this nature, without a previous monitoire[?] from his official superior, or at least without a timely notification, for the purpose of attracting his attention, and /to the/ subject, and in the case of need his interposing hand.
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Title: [27 March 1804 Evidence. Forthcomingness]Description: 27 March 1804 Evidence. Forthcomingness Ch. Means §.2. Invitations §.1. Simple invitations. Simple /In the character of minor/ invitations are upon the face of them so inadequate that at first glance, they might seem scarce worth mentioning in this view. But upon a closer survey, this preconception will be found to require limitation in several points of view. In the case of a non-party /nonlitigant/ witness Neither for extraction of testimony nor for securing the appearance of the /a/ witness, can it perhaps in any individual instance be safely trusted to altogether: but for discovery it will in certain cases be seen to be neither inapplicable nor inefficient. In appearance at least The characteristic property of it consists in its not bringing to bear upon the will of the individual, whose [...?] nor[?] proposed to be engaged in the cause of justice, any factitious motives /any motives created for this purpose/: differing in this respect one the one hand from remuneratory applications, on the other hand from compulsive ones. If however it had not in any degree any such effect as that of applying on encreasing the action of human motives upon the human will of - upon the will either of the individual to whom /addressed by/ the invitation is addressed, or some other, this mode of application, would be nugatory and useless. Accordingly, with a single exception and that a slight one, it is capable of enlisting in the service of justice all those guardian /tutelary/ motives which have already been mentioned under the name of mendacity restraining motives: the motives belonging to the religious sanction, the motives belonging to the religious sanction, and frequently benevolence, of a more or less enlarged complexion according to the nature of the case. A truth to which the most uncultivated minds are not wholly insensible, is - that justice depends upon evidence, as well as general security upon justice. Setting aside the effect of this or that particular prejudice, in a civilized community every man conceives his duty to God or his reputation in society /among his acquaintances/ more or less concerned in giving such information in so far as it has fallen within his power as, by an address from competent authority he has made to understand is looked upon as conducive to so desirable an end.
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